On 16 May 2023, a day before the International Day Against Homophobia, the Supreme Court of Namibia (SC) ordered government to recognise same-sex marriages validly concluded outside of Namibia. Four of the five judges held that the Ministry’s interpretation of ‘spouse’ in the Immigration Control Act 7 of 1993 to exclude same-sex couples infringes on their right to dignity and equality. The legal effect of the judgment is that foreign spouses of Namibian citizens in same-sex marriages validly concluded in another jurisdiction will now enjoy the same privileges as those in heterosexual unions.
The Digashu ruling serves as a beacon of hope for LGBTQ rights in Namibia, following a series of cases where the SC had previously adopted a conservative approach. For example, in March 2023, the SC ruled in favour of government in a case where a four-year-old boy, born to a same-sex couple through surrogacy, sought Namibian citizenship through decent. Here, the Court did not engage the substantive issues involving the consequences of same-sex marriages, and instead directed the applicants to follow the proper registration process as prescribed by the Citizenship Act 14 of 1990. In the same month, the High Court heard arguments in a matter challenging the common law of sodomy and related offences, from which a ruling is pending.
Perhaps most significantly, the Digashu Court rejected its own obiter statement in the Frank case (2001) that same-sex relationships do not warrant equal protection before the law, providing prospect and precedence for all future constitutional challenges to state sanctioned discrimination in Namibia.
The State’s Response to Digashu
The Digsashu judgment has been met with overwhelming opposition by the ruling party. On 16 June 2023, the SWAPO Central Committee resolved to direct government to ‘immediately’ take executive and legislative steps to define ‘spouse’ in the Immigration Control Act as a union between a man and a woman.
There is a prevailing attitude among the ruling elite that the SC judgment can be overturned by a subsequent Act of Parliament ‘prospectively, not retrospectively’. Concerningly, there have also been calls to put the issue to a referendum. To avoid a constitutional crisis, it is crucial to examine whether the constitutional framework in Namibia permits Parliament or alternatively a referendum, to override the SC’s interpretation of the constitution.
The Constitutional Framework of Namibia
In a system of parliamentary sovereignty, the legislature, through Acts of Parliament has the final say on the interpretation of the Constitution. It is a long-standing tradition in the United Kingdom and was the model through which British colonies were administered. The apartheid government in South Africa, which occupied Namibia, was able to enact discriminatory legislation and prevent judicial intervention due to its reliance on a system of parliamentary sovereignty.
Emerging out of the brutality of an unchecked parliament, Namibia joined other independent African states in 1990 by adopting a constitution in a move to a constitutional democracy. In a constitutional democracy, it is not parliament but the constitution that reigns supreme, and that constitutes the highest expression of the values of the people.
Though each constitution has its own perimeters in separating power amongst organs of the state, in Namibia, the courts are the guardians of the constitution, and are vested with the powers to interpret, implement, and uphold it (Article 79(2)).
Interpreting Article 81 of the Constitution
Article 81 of the Namibian Constitution states that SC’s rulings are binding on all courts and persons in Namibia, ‘unless it is reversed by the Supreme Court itself, or is contradicted by An Act of Parliament lawfully enacted.’
In the Frank case, O’Linn J took up a literal reading of Article 81, concluding that Parliament has the ultimate authority on the interpretation of the Constitution, even referring to the legislature as a ‘High Court of Parliament’. This is however a grave misinterpretation of the constitutional framework in Namibia and is contrary to practice.
Writing in a publication celebrating 30 years of the Supreme Court of Namibia, Schultz and Hijarunguru correctly conclude that ‘the court has no mandate to promote politics, that is majorities of the day, but it has to give effect to the eternal values arising from what we would call the deep structure of the Constitutional text.’
The Namibian Constitution was promulgated as the anti-thesis to its dark colonial past. It holds inside a vault, the fundamental and omnipotent values of the Namibian people that guide the cultivation of a society pillared on ‘the inherent dignity and equal and inalienable rights of all members of the human family’ (Preamble). One of the reasons for establishing a new legal system and granting the courts the authority to review all legislation was to safeguard the rights of minority groups and individuals who lack sufficient protection through democratic processes.
In fact, the Namibian Constitution has entrenched a Bill of Rights that cannot be amended in any manner (i.e., elected representatives, referendums or otherwise) that would serve to undermine or diminish these rights (Article 131) – in this instance, the rights to equality and dignity. Every decision by the court must therefore inch us closer to these aspirations, and every attempt to undermine them must by virtue of duty, be reckoned with by the court.
A slippery slide’
As former Judge of the Constitutional Court of South Africa, Yacoob J warns; ‘the absence of appropriate vigilance might result in the beginnings of a slippery and inevitable slide from constitutional supremacy to parliamentary supremacy.’ Returning to Digashu, – in upholding the right to equality and dignity of same-sex couples in Namibia – the SC has shown that it is committed to upholding the Constitution, protecting (unpopular) minorities, and is not subject to populist views of the majority, but to the principles, values and ideals enshrined in the Constitution.
The ball is now in the court of the executive and legislature. Though Namibia is celebrated for its adherence to the rule of law, the current climate on the issue of same-sex marriages summons the need for the ‘appropriate vigilance’ that Yacoob J cautions us about. It is important that the legislature be correctly advised that any law enacted to override the SC’s interpretation of the constitution, prospectively or retrospectively, and in Digashu and otherwise, would be a breach of the rule of law, blur the separation of powers, violate the rights of minorities, and ultimately pave the way for parliamentary sovereignty to creep through into the back door.
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